(concurring). — This case presents interesting questions and questions that should be well weighed. This action is under our State statute, and is by the widow in her own right. At common law she had no cause of action. Her action is therefore fully statutory. She must stand or fall under the provisions of our statute, because the Federal statute does not undertake to give to her an individual right of action. In her individual capacity she could not sue under the Federal statute. Starting with the proposition that the right to sue at all is purely statutory, let us see what is the status of plaintiff. Under the State law a right of action (one not theretofore recognized by the common law) was given to the widow of the deceased, upon condition as to time of bringing suit as set out in such statute. This right of action was one given to her, personally, and not a right of action given to the representative of the estate of the deceased. The Federal statute also creates a cause of action not recognized at common law, but it gives the right of action to the representative of the estate, and not to the widow or children in their personal rights. It requires no strain of imagination to see that the two statutes give different rights of action. In the one, the right is in the widow or children personally, and the other it is in the representative of the estate. This point is vital in this case.
■ It is settled doctrine that where a statute of the Federal Government is passed to and does cover a given field, then the fact of its passage operates as a practical repeal of State statutes upon the same sub*189ject. The State law is nullified as-to all persons falling within the purview of the Federal act. Lamm, J., in a separate concurring opinion in the case of Thompson v. Railroad, 262 Mo. l. c. 490, aptly says:
“That when the Congress of the United States, under its constitutional power of regulating interstate commerce, has occupied the field by its statute, the State damage act must give way, pro tanto, where the two overlap in remedy, is not to be questioned for a moment. However much the State bench and bar may revere the old landmarks of our statute on damages, they must be willing to see that statute yield when the paramount authority of the Federal Government once takes over any phase of the regulation of interstate commerce and the liability of carriers in that line of business, as it has done in this-instance.”
Prior to the Federal act involved in this case the widow of a person belonging to the class to which plaintiff’s deceased husband belonged had a statutory right of action. It was a right of action created by a State statute. This, however, did not prevent the Federal Government from passing a statute covering the field of persons injured 'while engaged in interstate business. ■ The Federal Government saw fit to assert itself in the matter, and when it spoke, the right of action for one dying from injuries received while engaged in interstate commerce was given to the representative of the estate, and not to the widow or children personally. This statute of the Federal Government placed persons engaged in interstate commerce into a class to themselves and created a right of action in case of death. As to persons falling within the class, this Federal law took the place of all State statutes dealing’ with the same subject-matter. As to this class of persons it pro tanto repealed the State statutes. Such State statutes became as ineffective, both as to rights and remedies, as they would have been had they been specifically repealed by the State.
*190As to persons engaged in interstate commerce this Federal statute left no State law as to who might recover damages, or as to what extent, or under what conditions they could recover. It fully obliterates the State law. The cause of action being purely statutory, the plaintiff in this case was left without a cause of action at all when the Federal law was passed. The Federal law fully covered the field of liability, so far as the class to which plaintiff’s husband belonged. Under the State statute she was then left no cause of action at all. She averred facts sufficient to make a cause of action under the State statute, but upon this the proof failed. Had she averred the fact that defendant was an interstate carrier, then the petition would have been subject to demurrer, and that being waived, there might have been a question of waiver in the case. .We do not pass upon this question, however, because it is not a live issue here.
It is sufficient to say that plaintiff planted her, cause of action upon a State statute, which as to her had been repealed by the Federal statute. The general denial interposed by defendant was sufficient to raise all questions of vitality here. Her petition averred a right of action under the State statute. The answer denied all the averments of the petition. When tlie Federal law dethroned her right of action as an individual, there was in fact no subject-matter to which jurisdiction could attach. Her individual right to sue had been repealed. The general denial raised the* issue, and because the court forced a trial after objection made, cannot bind defendant either by waiver or otherwise.
It is unnecessary to try to review the cases from the United States Supreme Court. They are binding here, and'we cannot distinguish this case from those cited in the majority opinion. With these suggestions, I concur in the opinion.
Woodson, J., concurs in these views.